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The bill entitled "Surveillance Practices and Procedures Act of 1973” is before the subcommittee and has been introduced on both sides by myself in the Senate and by the chairman of this subcommittee in the House of Representatives.
The bill is a direct response to wiretap abuses in so-called national security cases. Last May it was revealed that in 1969 the White House bypassed established procedures and authorized wiretaps on the telephones of 17 Government officials and newspapermen. The purported basis of these taps was a concern that sensitive information was being leaked to reporters by Government officials. The Government, however, did not obtain a judicial warrant before installing the taps. The Government alone decided whom it would tap and for how long
Subsequent investigation showed that some of the Government officials tapped did not have access to sensitive information. It was also learned that two of the taps were maintained after the individuals involved had left Government service and joined the Presidential campaign staff of Senator Muskie. In none of the cases was the individual suspected of having violated the law.
These are not isolated incidents. Warrantless taps based on socalled national security reasons were placed on the telephones of newspaper columnist Joseph Kraft in 1969 and in 1971 on friends of a Navy yeoman suspected of passing sensitive information to the Joint Chiefs of Staff. Again, none of these individuals was even suspected of having violated the law.
The use of so-called national security taps, however, has not been confined to the present administration. Democratic and Republican administrations since the 1930's have used such taps to spy on law-abiding individuals. Various government reports indicate that since that time thousands of individuals have had their telephone conversations intercepted for so-called national security reasons.
From the very beginning, those sensitive to civil liberties recognized the dangers of warrantless wiretaps. Such taps enable the Government to exercise unchecked and unreviewed power over the individual. There is no opportunity for a court, the Congress, or the public to demonstrate that the taps are unreasonable. For this reason, Supreme Court Justice Oliver Wendell Holmes called them dirty business. In my view, such taps are also clearly unconstitutional.
To understand the basis of this opinion it is necessary to examine the language and judicial interpretation of the fourth amendment. That amendment states quite simply that:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
That language is clear and unequivocal. It allows for no exception.
One need not be an historian or a lawyer to understand the essential purpose of this amendment. It is intended to protect the individual's privacy from unreasonable invasions by the Government.
To afford this protection, the amendment contemplates that a neutral court—not the Government-will determine whether any search and seizure planned by the Government is reasonable. Otherwise the Government would be both advocate and judge of its own case.
The fourth amendment thus limits the power of the Government. Like the other amendments in the Bill of Rights, it reflects the framers' intention that individual liberty, rather than unrestrained governmental power, be the hallmark of our political system. In his dissent in the 1928 Olmstead case Supreme Court Justice Louis Brandeis articulated the importance of the fourth amendment in our scheme of government:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustified intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the fourth amendment.
The fourth amendment's protections apply to all Government searches and seizures. No exception is made for national security cases or any other kind of circumstance.
When the Constitution was drafted in 1787, our country was only 11 years old. The new American citizens had recently concluded a long war with England to preserve their country's independence. That independence was not entirely secure. The threat of foreign attack and subversion remained ever present. Despite the existence of this threat, the Founding Fathers adopted the fourth amendment and made no exception to its application.
In the 1967 Berger and Katz cases, the Supreme Court held that the fourth amendment applies to wiretapping for criminal purposes. In effect, these decisions required the government to obtain an approving judicial warrant before it could install a wiretap in a criminal investication.
In the 1972 Keith case the Court, by an 8-0 vote, decided further that the Government could not, wiretap individuals without a judicial warrant even when the individual's activiting threatened the Nation's "domestic security.” Arain, the Court made clear that wiretaps must adhere to the safeguards delineated by the fourth amendment:
“Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, the broader spirit now shields private speech from unreasonable surveillance.
The Supreme Court has not yet decided whether the fourth amendment's protections apply to cases involving the activities of foreign powers and their agents. In the Keith case, the court stated explicitly that it did not consider those situations where American citizens have a "significant connection” with foreign powers and their agents.
Because the Court has not ruled on these "national security” taps, the present administration maintains that it may install warrantless wiretaps in certain situations. In a September 1973 letter to Senator William Fulbright, chairman of the Senate Foreign Relations Committee, then Attorney General Elliot Richardson stated that the administration would continue to install warrantless wiretaps against American citizens and domestic organizations if the administration believes their activities affect "national security" matters-although "national security” is never defined.
Mr. Richardson's comments apparently still reflect administration policy. Last January the Justice Department reported that it had authorized three warrantless wiretaps for national security reasons-an average week's quota according to the Department. The Department did not explain to any neutral party such as the Court the justification for the taps or identify the subjects of the taps.
The continued use of warrantless wiretaps for so-called national security reasons underscores the need for congressional action. People in our country should not be afraid to speak to one another on the telephone, never knowing whether the Government is listening or how the Government might use any information obtained. Every citizen should be assured that the privacy of his or her telephone conversations will not be invaded unless a neutral court first determines that the invasion is justified pursuant to the Constitution.
The Surveillance Practices and Procedures Act is designed to provide that assurance. The bill includes three principal provisions.
First, before it could wiretap American citizens for national security reasons, the Government would have to obtain a judicial warrant based on probable cause that a specific crime has been or is about to be committed. This provision would thus protect an individual's privacy against unjustified national security wiretaps.
Second, before the Government could wiretap a foreign power or its agents, it would have to obtain a judicial warrant based on the belief that the tap is necessary to protect national security interests. The warrant standards for foreign powers and their agents would thus be less rigorous than those required for American citizens. This warrant requirement will in no way undermine the government's ability to protect against foreign attack or subversion; the government will be able to wiretap foreign powers and their agents any time there is a need for such surveillance and the need is presented to the court.
The justification for this second warrant procedure is plain. The Government's desire to wiretap should be reviewed by a court in all instances.
Third, every American citizen wiretapped would be informed of the surveillance with 30 days after the last authorized interception. This provision would assure every wiretapped American citizen the opportunity to protect against violations of his or her constitutional rights. The disclosure of the wiretap could be indefinitely postponed, however, if the Government satisfies the court that the person wiretapped is engaged in a continuing criminal enterprise that would involve, for example, organized crime activities, or that disclosure would endanger national security interests.
The need for legislation such as this should be beyond dispute. Warrantless wiretaps—whether for “national security” reasons or other purposes--pose a grave danger to individual rights of speech and privacy. Such taps invest the Government with an absolute power over the individual. They enable the Government to pry into an individual's private affairs without justification. They foster the reality of an Orwellian state in which the government becomes a monster to be feared rather than a servant to be trusted.
That is not the kind of government envisioned by our Founding Fathers. The underlying and fundamental permise of our Constitution is that all Government power is limited by checks and balances. This is no less true of the Government's power to protect "national security.” That power is not so absolute that it can excuse infringements of the right to privacy and other constitutional liberties. It would indeed be ironic if the government could invoke "national security” to violate those individual freedoms which the government is obligated to defend.
Mr. Chairman, I think I have covered everything that needs to be covered on my testimony.
Mr. KASTENMEIER. Thank you, Senator Nelson, for your very compelling testimony. I have just a couple of questions.
While it may be said that one could determine what is crime in the Federal svstem and what is not a crime, are you satisfied that there is any definition as to what constitutes "national security" or "national security interest" for these purposes?
Senator NELSON. There is none. In the past, national security has been what the users of the wiretap considered national security to be. So during the Vietnam war and during the demonstrations, the National Council of Churches was invaded by military intelligence people, and all kinds of people were spied on if they attended a demonstration where no crime was committed and where no violence occurred. For some unknown reason the government believed these people must threaten the national security. As a result they were spied on or wiretapped.
If you allow that gaping hole to exist, you have simply destroyed the intent of the fourth amendment and you have given unlimited power to the government under the statute to do wiretapping.
Mr. KASTENMEIER. Yes, what you propose to do is bring all wiretapping into a situation where a warrant is required, whatever its definition?
Senator NELSON. I think that the language of the fourth amendment is so clearly spelled out that there is absolutely no exception under any circumstances. I don't think you can leave any exception.
There should be no problem with "national security" matters because espionage and treason are in fact crimes. They are spelled out as crimes.
If some Government agency believes that there is a matter involving the security of this country which justifies a wiretap, all this proposal says and all the Constitution says is that you must go to à court. It will authorize the wiretap upon oath or affirmation showing probable cause. After all, if the Government does not have to make a showing of probable cause, it has a license to spy on everybody. And there is no way to leave a little crack open without it bursting the whole dam.
Mr. KASTENMEIER. What sanction would you recommend for officials who, notwithstanding the existence of the requirement for a warrant, might nonetheless wiretap, feeling that the reason is such a compelling one that they would resort to both legal wiretapping or illegal wiretapping, similar to the "plumbers'" unit?
Senator NELSON. I don't remember what the provisions are, but that is a criminal offense.
Mr. KASTENMEIER. Do you think we ought to concern ourselves especially with government officials who conduct wiretapping unauthorized by law?
Senator NELSON. I don't think that officials are above and beyond the reach of the law. And of course, people can do things illegally and commit crimes and we may not know it. That is one of the reasons that I would want a bipartisan committee to call before it, at least annually, the head of the FBI, look at his records and put him under oath in order to be sure that he doesn't dare perjure himself. I would then call the head of the FBI in New York and Chicago and Los Angeles and put them under oath. Then next I would call the head of the FBI from Milwaukee and Miami and Houston and put them under oath so that at all times you are having a half dozen people under oath respecting the activities of that agency. Congress can thus be assured that somebody who is dishonest and in a position of power is required to testify under oath. Congress can also be assured that there will be additional testimony that might expose the dishonest agent.
I would do that with respect to military intelligence and all other intelligence. I think that gives you a pretty good guarantee.
For example there is no reason for somebody to risk going to jail for the purpose of spying on citizens participating in Earth Day ceremonies in 1970 to express their concern about the deterioration of the environment. Nor is there any reason for the Government to involve the National Council of Churches' meetings, as was testified before Senator Ervin's committee, and listen to the discussion of these very fine people who were doing nothing criminal and who happened not to like the war that we were involved in.
I don't think that anybody is going to risk going to jail in order to spy illegally upon a perfectly decent citizen, particularly since, if there is probable cause that somebody threatens the national security or probable cause that a crime is being committed or probable cause that shows some citizen is involved with a foreign agent, the court warrant would be issued.
And the reason you can't make any exception is that the exception becomes the rule.
Mr. KASTENMEIER. I take it that the scope of your bill is wiretapping, electronic surveillance ? Does it also involve other surveillance, common surveillance ?
Senator NELSON. This bill is limited specifically to warrantless wiretaps.